Supreme Court: Apple Data Centre objectors not restricted to grounds pursued in the High Court.

Two Athenry residents who object to the planning permission granted by An Bord Pleanála for development of an Apple data centre and associated grid connection, have been permitted to argue both for the position adopted in the High Court that there is an obligation to carry out a full EIA on the entire masterplan, and also to argue for any lesser obligation as a fall-back position. Despite Apple’s decision not to go ahead with the development, Chief Justice, Mr Justice Frank Clarke said that the question of the validity of the permission granted remained alive due to the possible benefit to the owner of the lands or future purchasers. The Supreme Court will hear the full appeal in Galway in March 2019.

Procedural History

In the High Court in October 2017, Mr Justice Paul McDermottrefused to grant Sinead Fitzpatrick and Alan Daly (the applicants) an order of certiorari quashing the decisions of An Bord Pleanála to grant Apple Distribution International planning permission for development of a data centre and associated grid connection in Athenry, Co. Galway. Mr Justice McDermott also refused to grant a declaration that the Board’s decisions were in breach of Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment (the EIA Directive).

In a separate judgment, Mr Justice McDermott also refused to grant the applicants leave to appeal his decision to the Court of Appeal.

In April 2018, the applicants were granted leave to appeal directly to the Supreme Court. In May 2018, the Court made an order joining the Minister for Housing, Planning and Local Government, Ireland, and the Attorney General to the proceedings as amici curiae.

Ultimately, Apple decided not to go ahead with the development, but Mr Justice Clarke said that the fact remained that there was ‘an apparently valid permission granted in respect of the development which would inure to the benefit of the owner of the lands or, indeed, any purchaser’. He said that ‘in those circumstances, the question of the validity of the permission granted remains alive’.

In the course of case management, two questions arose which were considered in the present judgment:

The scope of the appeal which could legitimately be pursued; and

Whether it is appropriate, at this stage, to refer a question or questions to the CJEU.

Scope of the Appeal

In relation to the first question, the Board contended that the grounds which the applicants sought to put forward on this appeal were inconsistent with, or at least different from the grounds pursued in the High Court.

Mr Justice Clarke said that it was clear from the judgment of O’Donnell J in Lough Swilly Shellfish Growers Co-Operative Society Ltd & anor v Bradley & anor [2013] IESC 16 that ‘the fact that a point was not raised in the courts below is not an absolute barrier to it being maintained on appeal but that there are significant limitations on the extent to which latitude can or should be given’.

Mr Justice Clarke said that ‘an appeal should ordinarily be confined both to the issues identified in the grant of leave to appeal as meeting the constitutional threshold and to grounds or issues raised in the court or courts below. However, there should not be a completely inflexible attitude to allowing some evolution in the issues permitted to be raised by reference to those raised in the court or courts below (as per Lough Swilly) or by reference to the terms of the grant of leave’, (as in McDonagh v Sunday Newspapers Limited [2017] IESC 59).

Considering the circumstances of the present case, Mr Justice Clarke said that the applicants ‘should be permitted to argue both for the position adopted in the High Court… that there is an obligation to carry out a full EIA on the entire masterplan subject only to the limits of practicality’, and also to argue for a ‘fall-back position’ which suggests the possibility of an obligation to assess environmental impacts which falls short of the primary case made by the applicants, but which exceeds the assessment carried out by the Board.

Mr Justice Clarke said it ‘would obviously follow that the Court would be entitled to consider, in the light of the conclusion actually reached in relation to the precise obligation of the Board, whether the assessment actually conducted in this case fell short of the obligation thus identified’.

Reference to the CJEU?

On the second question, it was suggested that reference to the CJEU as a preliminary matter would be appropriate on the basis that ‘a resolution of at least some issues of European law might be necessary to the final resolution by this Court of this appeal’.

Mr Justice Clarke said that it was ‘highly likely that the final resolution of this appeal will, at a minimum, require the application of principles of European law to the circumstances of this case and in particular to the manner in which the Board assessed the potential impacts of the remainder of the masterplan for Apple’s data centre’.

However, such an assessment did not necessarily lead to a question of European law, and may instead involve ‘the application of clear principles of European law to the circumstances of this case’.

Finding that it was not appropriate to make a reference to the CJEU at this stage, Mr Justice Clarke said that his position was without prejudice to the possibility that after a full hearing it may ‘become clear that there remain issues of European law which are both necessary to resolve so as to properly determine this appeal but which also are not acte clair’.